Skip to main content

DOMA Creates Problems for Second Marriages

By Anonymous
Often poorly written legislation has unintended consequences.  DOMA (the so-called Defense of Marriage Act) allows states to ignore marriages from other states or countries, when those marriages are between two people of the same gender.  We've previously written about the problems that this can cause in same-sex divorces: Same-Sex Marriage is Getting Easier, But Same-Sex Divorce is still Tricky.  But the problems don't just end there.

Since some states won't allow you get divorced from a same-sex marriage, residents of those states have been told that they are essentially not married.  Does this mean that they can re-marry in that state?  The answer is yes, but not without potential consequences.

To illustrate the risks, consider the following hypothetical scenario:

Jane Smith and Janet Doe have been living together for years in Texas.  They have friends in Massachusetts and when they heard about the ballot initiative in Maine to legalize same-sex marriage they decided to move to New England and be a part of that political movement.  They lived in Massachusetts for a year and got married in Massachusetts while traveling to Maine often to be involved in protests.  After the Maine initiative passed, Jane wanted to continue protesting in other states, but Janet wanted to settled down somewhere and start a family.  Realizing they had different goals Jane and Janet separated.  Jane moved back to Texas.  After a particularly bad winter storm, Janet decided Massachusetts wasn't for her and she moved to Florida.

While living in Texas Jane fell in love with John Lee, and they are now engaged.  Jane has been told that Texas doesn't recognize her same-sex Massachusetts marriage and she is free to marry John in Texas.  Jane and John get married without Jane dissolving her first marriage.

What happens if DOMA is repealed?

 If DOMA is repealed then states like Texas are going to be required to recognize out-of-state marriages even if they are same-sex marriages.  At that point Jane will have two marriages recognized by Texas law.  This could possibly make her second marriage void.  It also might create a violation of the bigamy laws in Texas, because Jane will be married to two people and still living with her second spouse.

What happens if Jane and John move to a state that recognizes same-sex marriages, like Maine?

 A state like Maine which allows same-sex marriage would recognize the original marriage. At that point Jane will have two marriages recognized by her state of residence.  This could possibly make her second marriage void.  It also might create a violation of the bigamy laws in Maine, because Jane will be married to two people and still living with her second spouse.

How can Jane avoid these problems?

 Since Jane and Janet last lived together in Massachusetts, they can file for divorce in Massachusetts and dissolve the first marriage.  Once complete this will allow Jane to remarry without having to worry about the consequences.

However, if we change one fact in this hypothetical another problem arises.  If Jane and Janet didn't move to Massachusetts but just traveled there to get married while remaining residents of Texas, then they are are married in any state that recognizes same-sex marriage. However, they cannot get divorced in Massachusetts because neither is a resident and they never lived together in Massachusetts.  This means that Jane can't give divorced without moving to a state that recognizes same-sex marriages long enough to meet the residency requirements.

In this scenario, Jane can't get divorced and she shouldn't get re-married without getting divorced first.  Was it the intention of DOMA's drafters to prevent marriages between opposite-sex couples in their states?  Probably not, however, often poorly written legislation has unintended consequences.



Labels:

Comments

Post a Comment

Popular posts from this blog

2024 U.S. Presidential Party Platforms - What are the policy positions that could affect families?

By
While the laws that affect family formation, marriage and divorce are often made at the state level, there are also many policies and laws at the federal level that affect families and children.  Just some examples from recent years that have impacted families in my mediation practice include changes to the federal tax laws (such as  the elimination of the alimony tax deduction ) and U.S. Supreme Court rulings on same sex marriage and reproductive health rights.  In just over a month, the United States presidential election will have a significant impact on these federal policies going forward, and could choose the next appointments to the U.S. Supreme Court as well. In 2016 and 2020 we shared what each presidential platform said about families and policy regarding family formation and dissolution, and below we'll provide you an update on the 2024 presidential platforms.  As Maya Angelou said, "When someone shows you who they are, believe them the first time."...
1 comment
Read more

Massachusetts Family Court Financial Statement - Instructions & Best Practices

By
During a divorce, or other case in the Massachusetts Probate & Family Court that involves your finances, such as a child support case, you will likely be required to file a court form Financial Statement.  In Massachusetts there are two versions of this form: a "short form" if your income is under $75,000 and a "long form" if your income is $75,000 or more.  Many people find these forms confusing and we've compiled a list of helpful information for filling them out. First , to access the forms, the court has provided pdf or online versions here: Massachusetts Rule 401 Short Form Financial Statement (pdf) Massachusetts Rule 401 Long Form Financial Statement (pdf) There are also some basic instructions provided by the court explaining the sections of the forms and providing access to a Schedule A (for self-employed people) and Schedule B (for rental income): Massachusetts Rule 401 Short Form Financial Statement Basic Instructions Massachusetts Rule 401 Long F...
Post a Comment
Read more

Can you Deviate from the Massachusetts Child Support Guidelines?

By
When completing the Massachusetts Child Support Guidelines Worksheet , many people are surprised by the resulting amount.  The court treats the worksheet amount as presumptive, which means that the amount in the worksheet is likely to be ordered by the court unless there is a good reason to deviate.  A common question in mediation between parents (both married and unmarried) is: If we agree to a different child support amount than the worksheet (or no child support at all), can we opt out or agree to a different child support than the guidelines suggests? The short answer is: sometimes.   In order to receive a Judgment from the court (whether in a divorce or an action between unmarried parents), the court requires the filing of the Child Support Guidelines worksheet.  However, there is a list of deviation factors in the Guidelines that the court can consider for ordering a number different than the worksheet.   When people are proposing a deviation tha...
Post a Comment
Read more